A Mumbai court has granted bail to an Air India Airport Services Limited (AIASL) driver arrested by the Directorate of Revenue Intelligence (DRI) in connection with an alleged gold smuggling racket, holding that the value of gold recovered from different accused persons cannot be aggregated to determine the quantum of punishment under Section 135 of the Customs Act, 1962.
The order was passed by the Court of the Additional Chief Judicial Magistrate, 19th Court, Esplanade, Mumbai, while allowing the bail application of the accused, who had been arrested in a DRI case alleging his involvement in the smuggling of gold worth over ₹5.01 crore.
According to the prosecution, the DRI registered a case under Section 135(1)(i) of the Customs Act after intercepting an alleged gold smuggling operation involving airport staff and foreign transit passengers. The investigation claimed that a total of seven egg-shaped capsules containing gold dust mixed with wax, weighing 3,318.12 grams and valued at ₹5,01,46,800, had been recovered.
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The applicant, an Indian citizen employed as a driver with Air India Airport Services Limited at Mumbai’s Chhatrapati Shivaji Maharaj International Airport, sought bail on the ground that the DRI had wrongly clubbed together the value of all the seized gold to invoke the more stringent punishment provisions under Section 135 of the Customs Act. He also pointed out that the gold had already been seized and that he was the sole breadwinner of his family.
Dr. Sujay Kantawala, the counsel on behalf of the accused further informed the court that he had filed a separate application retracting his statement allegedly recorded by the DRI. The statement had been obtained under coercion while he was in custody and alleged that he had been threatened, assaulted, and compelled to sign documents. He also contended that he was not properly informed of the grounds of arrest or given an opportunity to contact his advocate.
The DRI opposed the bail application, arguing that the accused was an active participant in a well-organised gold smuggling syndicate. According to the agency, he had admitted during his statement recorded under Section 108 of the Customs Act that he was one of the key handlers responsible for receiving smuggled gold from transit passengers and delivering it further within the syndicate.
The agency maintained that the investigation was still at an initial stage and that the seriousness of the offence warranted denial of bail.
While considering the rival submissions, the court referred to the Delhi High Court’s decision in Air Customs v. Begaim Akynova (2022 SCC OnLine Del 8), which interprets the punishment provisions under Section 135 of the Customs Act.
The court noted that where the market value of the goods exceeds ₹1 crore, the offence attracts enhanced punishment under Section 135(1)(i). However, if the value attributable to an individual accused falls below that threshold, the lesser punishment prescribed under Section 135(1)(ii) would apply.
Examining the facts of the case, the court observed that although seven capsules were ultimately recovered, they were not recovered from the personal possession of a single individual.
The order records that three capsules were recovered from a Bangladeshi passenger after he allegedly received them from the applicant, while four additional capsules were later recovered from two Sri Lankan transit passengers, who allegedly carried the gold concealed inside their bodies before purging it at the customs office.
The magistrate held that the value of all the recovered gold could not automatically be clubbed together for determining the punishment against each accused.
According to the court, every accused must be made answerable only for the quantity of gold individually attributable to him, and the principle of common intention under Section 34 of the Indian Penal Code could not be invoked for determining punishment under the Customs Act in the present circumstances.
The court also took note of the fact that although one co-accused had allegedly referred to instructions received from unidentified masterminds of the smuggling syndicate, the investigation had not identified or arrested those alleged masterminds.
The court observed that despite the accused having remained in custody for over 40 days, the DRI had neither sought further custodial interrogation nor clarified who coordinated the alleged syndicate or who ultimately disposed of the smuggled gold in the grey market. The applicant was also found to be a permanent resident of Mumbai employed with AI Airport Services Limited.
The court allowed the bail application and directed the release of the accused upon furnishing a personal bond of ₹1 lakh with one surety of the like amount.
The court imposed several conditions, including that the accused must cooperate with the investigation, refrain from influencing witnesses or tampering with evidence, surrender his passport to the DRI for six months, obtain prior court permission before travelling abroad, and regularly furnish his residential and contact details to the investigating agency and the court.
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